Ohio

What’s Up in the 8th

The defendant in State v. Pate had gotten his 20-year prison sentence the old-fashioned way:  he’d earned it, firing a couple of shots at police officers while running from them, then hijacking a car at gunpoint and leading the police on a car chase.  Proving once again that truth is stranger than fiction, the chase ended when Pate crashed his car into the Justice Center.  The court’s decision answers several questions, the most significant of which is, Does the court have to advise the defendant at the plea hearing of the consequences of violating post-release controls?  No, it turns out; doing it at sentencing is sufficient.

Slightly rarer than a Bigfoot sighting is an appellate court reversing a denial of post-conviction relief.  That’s exactly what happened in State v. Tucker.  The result comes despite a weird procedural history.  Tucker had been convicted of aggravated murder on the testimony of two eyewitnesses, both of whom recanted about a year later.  Tucker filed for post-conviction relief on this basis, and the judge granted a hearing.  Before it could be held, a new judge took over the docket and reversed the ruling to grant a hearing, and denied the motion.  Tucker filed a delayed appeal, which was denied.

Still with me?  Tucker then files a second petition for postconviction relief, this time based on the affidavit of another person who was there at the time and says that Tucker couldn’t have been the shooter.  The judge overrules that motion as well, saying that the new testimony wouldn’t have made any difference, given the testimony of the two eyewitnesses.  Who, the court of appeals points out, have “arguably” recanted.  It reverses and remands for an evidentiary hearing, leaving unanswered the question of how the original recantations are resolved.  The court rejects Tucker’s assignment of error regarding the new judge’s decision not to hold a hearing on the original petition, noting that’s res judicata because of the denial of the initial appeal.  It’ll be interesting to see how that gets sorted out.  The opinion’s a good read, though, particularly on the standards to be used in evaluating post-conviction relief motions.

Well, frankly, this was dumb:  in Pesic v. Pezo, the plaintiff is injured in an automobile accident, files suit in municipal court, tries the case to the bench, and then argues that the resultant award — $1,326, based on claimed damages of $4,876 — was the result of “passion and prejudice.”  Good book title, but not a winning appellate argument.  The case serves mainly to reinforce my opinion that trying personal injury cases involving minimal property damage and soft tissue injuries poses approximately the same rate of remuneration as being the chief fry guy at McDonalds.

And last, a look at plea bargaining in Cuyahoga County – from the court’s opinion in State v. Wittine:

Wittine complains that the court inappropriately influenced the plea negotiations. He maintains the court’s bailiff stated to him and counsel that “a settlement was desired.” When the parties agreed to a misdemeanor charge, the bailiff supposedly stated that  ”there would be no plea to a misdemeanor but instead to a fourth degree felony gross sexual imposition.” Finally, he claims this same bailiff came back with the suggestion of a fifth degree felony, but added that if the plea were not agreed to within five minutes, trial would immediately commence.

The court rejected the claim, noting that there was nothing about this on the record.  (Would’ve been kind of surprising if there was, don’t you think?)  If you practice in this County, see if you can guess who the bailiff was.  I did.

Full post as published by The Briefcase on November 11, 2008 (boomark / email).